In September 2011, the United States Attorney (“USA”) Office for the Southern District of New York(“SDNY”) announced that it was engaged in the Manhattan Restaurants American with Disabilities Act of 1990(“ADA”) Compliance Initiative. At that time, restaurant owners and operators of the 2011 Zagat Guide’s “most popular” New York City restaurants were asked to complete a government Survey Form, indicating their restaurant’s accessibility. Subsequently, Department of Justice investigators conducted on-site inspections of some establishments to confirm ADA compliance.

Owners and operators of restaurants found to be non-compliant were given the option of entering into a Voluntary Compliance Agreement; those found to be engaging in a pattern or practice of discrimination, or that failed to enter into Voluntary Compliance Agreements faced a federal civil lawsuit and/or penalties, including monetary damages and civil fines. A number of restaurants with deficiencies voluntarily pursued remedial measures to bring their business into ADA compliance.

A Rosa By Anyother Name?

On October 15, 2012, the SDNY USA announce that its Civil Rights Unit was filing its first lawsuit under the Manhattan Restaurants ADA Compliance Initiative. READ the full-text Complaint. The defendants are

ROSA MEXICANO COMPANY,

WEST 62 OPERATING LLC,

FENIX RESTAURANT, INC., and

ROSA MEXICANO USQ LLC.,

the owners and operators of the three Manhattan locations of the popular Rosa Mexicano restaurant chain.

NOTE: The assertions in the civil Complaint are merely allegations and the defendants are entitled to the presumption of innocence unless and until prove guilty in a court of law.

According to the federal Complaint, Rosa Mexicano restaurant locations: 61 Columbus Avenue (“Rosa Mexicano Lincoln Center”), 1063 First Avenue (“Rosa Mexicano First Avenue”), and 9 East 18th Street (“Rosa Mexicano Union Square”), have numerous ADA violations pertaining to their entrances, waiting areas, bar areas, dining areas, and restrooms. Pointedly, the Lincoln Center Rosa Mexicano allegedly lacked an accessible main entrance, and its “alternate entrance” was deemed non-compliant. Further, the chain’s First Avenue establishment was cited for non-ADA compliant entrance and for its three restrooms. Finally, the Union Square address was cited for non-compliant main and “alternate” entrances, and restrooms.

By way of example, under Paragarph 14 of the Complaint, are these allegations:

(b) The route from the Columbus Avenue entrance to the upper level of the restaurant (where the toilet rooms are located) is via a flight of stairs. Patrons who cannot use the stairs are directed out of the restaurant and around the corner to an adjacent building on 62nd Street the Harmony Atrium, through which there is a route to the upper level of the restaurant. There is no directional signage at the Columbus Avenue entrance indicating the route to the Harmony Atrium alternate entrance . . .

(c) The elevator hoistway entrances in the Harmony Atrium do not have raised and Braille floor designations on both jambs . . .

(d) The designated accessible entrances along the route from the Harmony Atrium to the upper level of the restaurant are not identified with the International Symbol of Accessibility . . .

SDNY USA Preet Bharara said:

When it comes to restaurants, New York City is arguably the world’s crown jewel, and the purpose of this initiative is to ensure that individuals with disabilities have equal access to its offerings. With today’s lawsuit alleging multiple violations of the ADA at three Rosa Mexicano locations in the City, that is exactly what we are doing. As alleged, neither the ADA, nor the warnings from this Office were enough to convince these restaurants to comply with the law, and the goal of this lawsuit is to see that they finally do.

Bill Singer’s Comment

Preet Bharara is a pretty busy guy – many folks, including myself, think he’s as close to the Sheriff of Wall Street as there is today. Regardless of my frequently voiced concerns about some of the cases that his office has brought, I commend him for at least taking his job seriously and being about the only cop out there who seems to be seriously policing the securities industry. As I have often noted, he’s the best U.S. Attorney of my lifetime. Of course, best doesn’t mean perfect.

In first reading about the case that is the subject of this column, I initially responded with an OMG – are you serious? Given all the seemingly important criminal issues on the SDNY’s plate, this problem struck me as something better suited for a local prosecutor or for private civil lawsuits. After all, theBig Apple is now the home to a ban on the sale of sodas over 16 ounces — you want to learn about robust debate, go ask some New Yawkers about that one!

Whatever your political leaning – liberal, libertarian, conservative, anarchist – I’ll leave it to your sensibilities to parse today’s case as you will; however, there is no doubt that there are many disabled citizens who daily face hurdles that simply do not need to be there and should be eliminated. If this case addresses those problems, great; if you feel otherwise, I understand.

No sermons from me. No potshots. I’m simply telling you what the facts are.

And before you’re too quick to support or argue with me, READ these prior “Street Sweeper” columns on ADA issues:

To File Complaints

Since President George H.W. Bush signed the ADA into law in 1990, the U.S. Attorney’s Office for the Southern District of New York has taken a leading role in bringing numerous New York City institutions into compliance with the ADA regulations. They include Avery Fisher Hall at Lincoln Center, the Metropolitan Opera, Yankee Stadium, Madison Square Garden, the Apollo Theater, the Puck Building, the Shubert Theaters, the Rainbow Room, and Radio City Music Hall.

To file a complaint alleging that a restaurant or any other place of public accommodation within the Southern District of New York is not accessible to persons with disabilities, use the Civil Rights Complaint Form available on the United States Attorney’s Office’s website,www.usdoj.gov/usao/nys. Complaints should be sent to:

A potential graveyard for whistleblower claimants under Dodd Frank is 17 CFR 240.21F-4(b)(4). As set forth in the Rule, officers, directors, trustees, or partners may be deemed ineligible for an award unless the subject information was reported to the SEC more than 120 days after other responsible compliance personnel possessed the information... Read On